With the Supreme Court’s term winding down and Republicans’ midterm election prospects on the rise, some liberal legal advocates want Justice Ruth Bader Ginsburg to retire this summer. That way, President Barack Obama can appoint a like-minded successor while the Senate is still under Democratic control.
Ginsburg, 81, is the oldest member of the court. She has battled early-stage colon and pancreatic cancer and is widely seen as the next justice to announce her retirement. Former Justice John Paul Stevens added to the speculation when he told ABC News earlier this month that Ginsburg has consulted with him about when to step down.
Aside from her age and health considerations, Ginsburg, the senior member of the court’s liberal wing, also may want Obama, a former constitutional law professor with a similar legal world view, to name her replacement. Stevens told ABC that he personally believes “it’s an appropriate thing to think about your successor.”
While Obama has more than half of his second term ahead of him to fill potential Supreme Court vacancies, growing concerns that Republicans will take control of the Senate in November have intensified some liberal scholars’ calls for Ginsburg to step down.
“I do not minimize how hard it will be for Justice Ginsburg to step down from a job that she loves and has done so well since 1993,” Edwin Chemerinsky, dean of the law school at the University of California at Irvine, wrote in a Los Angeles Times op-ed on Ginsburg’s 81st birthday in March.
“But the best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor. The way to facilitate that is for her to resign this summer.”
Chemerinsky highlighted the importance of the midterm elections in his assessment. Democrats currently have a 53-45 advantage in the Senate, with two Independents who caucus with them. But they are defending 21 seats in the fall, compared with 15 for Republicans, and the president’s party typically loses seats in midterm elections.
While Chemerinsky wrote that Obama “can have virtually anyone he wants” for the Supreme Court if Democrats take the Senate, that would not be the case if Republicans take over, said Ian Millhiser, a senior policy analyst at the Center for American Progress, a liberal think tank with close ties to the White House.
If a Supreme Court vacancy arises with the GOP in control of the Senate, Obama may be inclined to put forward a “really safe pick,” such as Patricia Ann Millett, a widely praised judge on the Court of Appeals for the District of Columbia Circuit, Millhiser said.
Obama may be less likely to nominate someone more in the mode of Ginsburg, such as Judge Cornelia “Nina” Pillard, another member of the D.C. appeals court whom Millhiser called “arguably the preeminent women’s rights litigator of her generation” and his own personal top choice for the court.
Republicans “can skim a few potential nominees off the top if they control the majority,” Millhiser warned.
If a Ginsburg retirement announcement were to come this year, recent history suggests it would occur soon — or would have occurred already.
Of the last five justices to announce their retirements, four did so by May 1, giving the president and Senate time to choose, evaluate and confirm successors before the beginning of the court’s new term in early October. The exception, Justice Sandra Day O’Connor, announced her retirement at the end of the court’s term in July 2005, but stipulated that she would serve until her replacement was confirmed.
The last four justices to be appointed to the court each waited between two and three months from nomination to confirmation.
There are few signs from Ginsburg that she is considering retirement. If anything, she has given strong hints to the contrary, telling The New York Times last August that “there will be a president after this one, and I’m hopeful that that president will be a fine president.”
In an interview with The Washington Post last October, she even seemed to acknowledge that Democrats might do poorly in the midterm elections. “I think it’s going to be another Democratic president” after Obama, she predicted. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”
Marge Baker, executive vice president for policy and program at the liberal legal advocacy group People for the American Way, said she would be “very surprised” if Ginsburg decided to step down this summer.
“She seems to be giving every indication that she really loves her job,” Baker said. “She’s super productive, she’s engaged. I don’t see any indication of somebody who is even thinking” of stepping down.
Others argue it is poor form for anyone to urge Ginsburg to resign.
“The timing of judicial resignation is a complex mix of ego, ideas of mortality, political fealty, and dynamics within the court,” Garrett Epps, a constitutional law professor at the University of Baltimore, wrote in a column last month. “Justices, I suspect, just don’t see the issue the way the rest of us do, as a straightforward matter of presidential elections and judicial votes. And for that reason, I think publicly telling Ruth Ginsburg what to do would be bad manners and bad psychology.”
Larry Baum, an Ohio State University political science professor who specializes in judicial politics, said in an interview that it is “certainly the case” that some justices have timed their retirements to ensure that an ideologically aligned president can appoint their successors.
Virtually no one, for instance, expects staunch conservative justices such as Antonin Scalia to step down while Obama is president. But Baum said justices traditionally have not made similar calculations about midterm Senate elections.
“To retire under a particular president before or after the Senate changes hands, that’s a more subtle matter,” he said. “I don’t recall any instances in the past where there’s been evidence that the justices took that consideration into account.”
One factor that could arguably make this year different from past midterm election years is the degree to which judicial nominations have sparked partisan animosity in the Senate. Following Democrats’ deployment last year of the “nuclear option” — a rules change that now allows all executive branch and non-Supreme Court judicial nominees to be confirmed on a simple majority vote, rather than the 60-vote threshold that was previously in place — Republicans have made life difficult for the majority when it comes to confirming judges.
The GOP has regularly forced cloture votes on noncontroversial district and appeals court judges this year as a way of highlighting Republicans’ unanimous opposition to the rules change. In 2013, at the end of the first session of the 113th Congress, Republicans forced Obama to re-nominate dozens of unconfirmed judicial nominees rather than carrying them over into the new session.
Though the nuclear option did not affect Supreme Court choices and Republicans retain their ability to filibuster high court nominees, it is an open question whether the significant fallout from the rules change could spill over into a possible high court nomination battle. Even without the bitterness over the nuclear option, the Senate has been the scene of some major fights over Supreme Court nominations, such as that of Justice Clarence Thomas.
Baker, of People for the American Way, said she would be surprised if a Republican Senate majority took the most aggressive step of all to oppose an Obama Supreme Court nominee: refusing to schedule a vote.
“It’s hard to imagine that they would use the tools of their majority to obstruct a Supreme Court nominee,” Baker said.